By Wohlgemuth H.B. No. 342
76R1958 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the parental notification required before an abortion
1-3 may be performed on a minor; providing a criminal penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle A, Title 2, Family Code, is amended by
1-6 adding Chapter 33 to read as follows:
1-7 CHAPTER 33. NOTICE OF ABORTION
1-8 Sec. 33.001. DEFINITIONS. In this chapter:
1-9 (1) "Abortion" means the use of any means to terminate
1-10 the pregnancy of a female who is known by the attending physician
1-11 to be pregnant, with the intention that the termination of the
1-12 pregnancy by those means will with reasonable likelihood cause the
1-13 death of the fetus.
1-14 (2) "Fetus" means an individual human organism from
1-15 fertilization until birth.
1-16 (3) "Guardian" means a court-appointed guardian of the
1-17 person of the minor.
1-18 (4) "Medical emergency" means a condition that, on the
1-19 basis of a physician's good faith clinical judgment, complicates
1-20 the medical condition of a pregnant woman and necessitates the
1-21 immediate abortion of her pregnancy to avert her death or to avoid
1-22 a serious risk of substantial and irreversible impairment of a
1-23 major bodily function.
1-24 (5) "Physician" means an individual licensed to
2-1 practice medicine in this state.
2-2 Sec. 33.002. PARENTAL NOTICE. (a) A physician may not
2-3 perform an abortion on a pregnant unemancipated minor unless:
2-4 (1) the physician performing the abortion gives at
2-5 least 48 hours actual notice, in person or by telephone, of the
2-6 physician's intent to perform the abortion to:
2-7 (A) a parent of the minor if the minor has no
2-8 managing conservator or guardian; or
2-9 (B) a court-appointed managing conservator or
2-10 guardian;
2-11 (2) the judge of a court having probate jurisdiction,
2-12 the judge of a county court at law, or the judge of a court of
2-13 appeals issues an order authorizing the minor to consent to the
2-14 abortion as provided by Section 33.003 or 33.004;
2-15 (3) a probate court, county court at law, or court of
2-16 appeals, by its inaction, constructively authorizes the minor to
2-17 consent to the abortion as provided by Section 33.003 or 33.004; or
2-18 (4) the physician performing the abortion:
2-19 (A) concludes that a medical emergency exists
2-20 and there is insufficient time to provide the required notice; and
2-21 (B) certifies in writing to the Texas
2-22 Department of Health and in the patient's medical record the
2-23 medical indications supporting the physician's judgment that a
2-24 medical emergency exists and that there is insufficient time to
2-25 provide the required notice.
2-26 (b) If a person to whom notice may be given under Subsection
2-27 (a)(1) cannot be notified after a reasonable effort, a physician
3-1 may perform an abortion if the physician gives at least 48 hours
3-2 constructive notice, by certified mail sent to the last known
3-3 address, to a person to whom notice may be given under Subsection
3-4 (a)(1). The period under this subsection begins at the time the
3-5 certified mail notice is mailed. The abortion may proceed after
3-6 expiration of the 48-hour period even if the certified mail notice
3-7 is not received by the person to whom it is sent.
3-8 (c) The Texas Department of Health shall prepare a form to
3-9 be used for making the certification required by Subsection (a)(4).
3-10 (d) A physician who violates this section commits an
3-11 offense. An offense under this section is a Class A misdemeanor.
3-12 Sec. 33.003. JUDICIAL APPROVAL. (a) A pregnant
3-13 unemancipated minor who wishes to have an abortion without
3-14 notification of one of her parents, her managing conservator, or
3-15 her guardian may file an application for a court order authorizing
3-16 the minor to consent to the performance of an abortion without the
3-17 notification.
3-18 (b) The application may be filed in the county court at law
3-19 or a court having probate jurisdiction for:
3-20 (1) the county in which the minor resides;
3-21 (2) a county that borders a county in which the minor
3-22 resides; or
3-23 (3) the county in which the hospital, clinic, or
3-24 facility in which the abortion is to be performed is located.
3-25 (c) The application must be made under oath and include:
3-26 (1) a statement that the minor is pregnant;
3-27 (2) a statement that the minor is unmarried, is under
4-1 18 years of age, and has not had her disabilities removed for
4-2 general purposes under Chapter 31;
4-3 (3) a statement that the minor wishes to have an
4-4 abortion without the notification of either of her parents or a
4-5 managing conservator or guardian; and
4-6 (4) a statement as to whether the minor has retained
4-7 an attorney and, if she has retained an attorney, the name,
4-8 address, and telephone number of her attorney.
4-9 (d) The court shall appoint a guardian ad litem for the
4-10 minor. If the minor has not retained an attorney, the court shall
4-11 appoint an attorney to represent the minor. If the guardian ad
4-12 litem is an attorney admitted to the practice of law in this state,
4-13 the court may appoint the guardian ad litem to serve as the minor's
4-14 attorney.
4-15 (e) The court shall set a time for a hearing on an
4-16 application filed under Subsection (a) and shall keep a record of
4-17 all testimony and other oral proceedings in the action.
4-18 (f) The court shall rule on an application submitted under
4-19 this section and shall issue written findings of fact and
4-20 conclusions of law not later than 5 p.m. on the second business day
4-21 after the date the application is filed with the court. The minor
4-22 may request an extension of the period specified by this
4-23 subsection. If the court fails to rule on the application and
4-24 issue written findings of fact and conclusions of law within the
4-25 period specified by this subsection and an extension is not
4-26 requested, the application is considered to be granted and the
4-27 physician may perform the abortion as if the court had issued an
5-1 order authorizing the minor to consent to the performance of the
5-2 abortion without notification under Section 33.002. Proceedings
5-3 under this section shall be given precedence over other pending
5-4 matters to the extent necessary to ensure that the court reaches a
5-5 decision promptly.
5-6 (g) The court shall determine by a preponderance of the
5-7 evidence whether the minor is mature and sufficiently well informed
5-8 to make the decision to have an abortion performed without
5-9 notification under Section 33.002 or whether the notification would
5-10 not be in the best interest of the minor. If the court finds that
5-11 the minor is mature and sufficiently well informed or that
5-12 notification would not be in the minor's best interest, the court
5-13 shall enter an order authorizing the minor to consent to the
5-14 performance of the abortion without notification under Section
5-15 33.002 and shall execute the required forms.
5-16 (h) If the court finds that the minor does not meet the
5-17 requirements of Subsection (g), the court may not authorize the
5-18 minor to consent to an abortion without the notification under
5-19 Section 33.002(a)(1).
5-20 (i) The court may not notify a parent, managing conservator,
5-21 or guardian that the minor is pregnant or that the minor wants to
5-22 have an abortion. The court proceedings shall be conducted in a
5-23 manner that protects the anonymity of the minor, and the
5-24 application and all other court documents pertaining to the
5-25 proceedings are confidential and may not be made available to the
5-26 public. The minor may file the application using a pseudonym or
5-27 using only her initials.
6-1 (j) The clerk of the supreme court shall prescribe the
6-2 application form to be used by the minor filing an application
6-3 under this section.
6-4 (k) A filing fee is not required of and court costs may not
6-5 be assessed against a minor filing an application under this
6-6 section.
6-7 Sec. 33.004. APPEAL. (a) A minor whose application under
6-8 Section 33.003 is denied may appeal to the court of appeals having
6-9 jurisdiction over civil matters in the county in which the
6-10 application was filed. On receipt of a notice of appeal, the clerk
6-11 of the court that denied the application shall deliver a copy of
6-12 the notice of appeal and record on appeal to the clerk of the court
6-13 of appeals. On receipt of the notice and record, the clerk of the
6-14 court of appeals shall place the appeal on the docket of the court.
6-15 (b) The court of appeals shall rule on an appeal under this
6-16 section not later than 5 p.m. on the second business day after the
6-17 date the notice of appeal is filed with the court that denied the
6-18 application. The minor may request an extension of the period
6-19 specified by this subsection. If the court fails to rule on the
6-20 appeal within the period specified by this subsection and an
6-21 extension is not requested, the application is considered to be
6-22 granted and the physician may perform the abortion as if the court
6-23 had issued an order authorizing the minor to consent to the
6-24 performance of the abortion without notification under Section
6-25 33.002. Proceedings under this section shall be given precedence
6-26 over other pending matters to the extent necessary to ensure that
6-27 the court reaches a decision promptly.
7-1 (c) The clerk of the supreme court shall prescribe the
7-2 notice of appeal form to be used by the minor appealing a judgment
7-3 under this section.
7-4 (d) A filing fee is not required of and court costs may not
7-5 be assessed against a minor filing an appeal under this section.
7-6 (e) An expedited confidential appeal shall be available to
7-7 any pregnant minor to whom a court of appeals denies an order
7-8 authorizing the minor to consent to the performance of an abortion
7-9 without notification under Section 33.002.
7-10 SECTION 2. The supreme court shall promptly issue rules
7-11 necessary in order that proceedings under Sections 33.003 and
7-12 33.004, Family Code, as added by this Act, are conducted in a
7-13 manner that will ensure confidentiality and have sufficient
7-14 precedence over all other pending matters to ensure promptness of
7-15 disposition.
7-16 SECTION 3. Except as provided by Sections 4 and 5 of this
7-17 Act, this Act takes effect September 1, 1999.
7-18 SECTION 4. Chapter 33, Family Code, as added by this Act,
7-19 applies only to an abortion performed on or after January 1, 2000.
7-20 An abortion performed before January 1, 2000, is governed by the
7-21 law as it existed immediately before the effective date of this
7-22 Act, and that law is continued in effect for that purpose.
7-23 SECTION 5. Subsection (d), Section 33.002, Family Code, as
7-24 added by this Act, takes effect January 1, 2000.
7-25 SECTION 6. The Texas Board of Health shall adopt the form to
7-26 be used under Section 33.002(a), Family Code, as added by this Act,
7-27 not later than December 15, 1999.
8-1 SECTION 7. The clerk of the Supreme Court of Texas shall
8-2 adopt the application form and notice of appeal form to be used
8-3 under Sections 33.003 and 33.004, Family Code, as added by this
8-4 Act, not later than December 15, 1999.
8-5 SECTION 8. The importance of this legislation and the
8-6 crowded condition of the calendars in both houses create an
8-7 emergency and an imperative public necessity that the
8-8 constitutional rule requiring bills to be read on three several
8-9 days in each house be suspended, and this rule is hereby suspended.